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Constitutionality of Section 497: Is it gender neutral?

Dated: August 09, 2018

The concept of Adultery is not new in the society. It is prevailing from the beginning of institution of marriage. The  Indian Penal Code that came into operation on January 1, 1862 was the first law in modern India to provide a legal definition of the term “Adultery”. 

Section 497 reads: “Whoever has sexual intercourse with a person who is and whom he knows or has reasons to believe to be the wife of another man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to 5 years, or with a fine, or with both. In such cases the wife shall not be punishable as an abettor.”

This Indian law on Adultery have been challenged several times before the Supreme Court resumed hearing the petition challenging constitutionality of criminalisation of adultery under Section 497 of the Indian Penal Code (IPC) and an inherent gender bias in the provision.

The constitutionality of Section 497 of the Indian Penal Code (IPC) was firstly challenged before the Supreme Court in the case of Yusuf Abdul Aziz vs. The State of Bombay (1954). The then Constitutional Bench held that Section 497 did not violate the right to equality as enshrined in Articles 14 and 15 of the Constitution. Sex is a sound classification and although there can be no discrimination on such account, the Constitution itself provides for special provisions with regard to women and children. Thus, Articles 14 and Article 15 read together validate Section 497 of the IPC.

The Supreme Court again upheld the constitutional validity of the law in Sowmithri Vishnu vs. Union of India (1985), where it was held: “The argument of the petitioner really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Where such an argument permissible, several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough. Such arguments go to the policy of the law, not to its constitutionality, unless while implementing the policy, any provision of the Constitution is infringed. Therefore, it cannot be accepted that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. However, it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ‘transformation’ which the society has undergone.”

Again in the case of V. Revathi vs. Union of India and Ors (1988), the petitioner questioned the constitutional validity of Section 198 of the CrPC as it acts as a fetter on the wife in prosecuting her adulterer husband. Dismissing the petition, this Court held: “Section 198 of the CrPC is not vulnerable to the charge of hostile discrimination against a woman. While the outsider who violates the sanctity of the matrimonial home is punished, a rider has been added that if the outsider is a woman she is not punished. There is thus reverse discrimination in ‘favour’ of the woman rather than ‘against’ her. The law does not envisage the punishment of any of the spouses at the instance of each other. Therefore there is no discrimination against the woman in-so-far as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. The law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.”

The law on Adultery was again brought forward for judicial scrutiny when the Supreme Court bench headed by Chief Justice Dipak Misra and Justices A. M. Khanwilkar  and D. Y. Chandrachud in December 2017 admitted and issued notice on a writ petition challenging the validity of section 497 of the IPC.

The law on Adultery has been the point of criticism for so long on the basis of two grounds: that the provision reduces a married woman to a property of the husband, and that punishment is meted out to the man though the woman with whom he had consensual sex was an equal partner in the alleged crime.

The reason behind constantly challenging the constitutional validity of sec 497 IPC is that it is gender bias and highly discriminatory in nature. This itself is depicted from the bare reading of the provision which mentions specifically that “the wife shall not be punishable as an abettor”.

The Supreme Court has recently commenced hearing the PIL seeking decriminalisation of the act of Adultery and while examining the constitutional validity of Section 497 of the Indian Penal Code, it observed that prima facie sec 497 was violative of the fundamental right to equality. 

The major issue on which the Supreme Court needs to give its judgment is whether adultery is a criminal offence. Adultery can be a socially or morally unacceptable practice but criminalising it is not an option. Worldwide, adultery has been decriminalised in a majority of the countries and it is high time that the Courts in India decriminalise it. Many judicial activists and social workers like Talish Ray are of the opinion that, “No marriage or alliance can take away one’s right over one’s own body. Therefore, while the law on adultery as it is today in the IPC is discriminatory on the ground of sex, the very existence of adultery in the criminal statute is violative of the fundamental right to life and to live with dignity. These issues will therefore remain unaddressed even if the court reads down Section 497 and gives women also the right to send their husbands to court. This Section will have to be struck down to do justice to the very notion of human life and dignity.”

In its recent hearing on August 8th, 2018, the judgment on Sec 497 IPC was reserved by the Supreme Court after the Chief Justice observed that the survival of a marriage should be left to the discretion of the husband and the wife, without any intrusion by the State.